In Gwynedd Council v Barratt the UK Court of Appeal confirmed that a redundancy dismissal will not be unfair solely because an employer has not offered an employee a right to appeal. However, failing to offer an appeal against dismissal will be one of the relevant factors to consider when deciding whether a dismissal is fair.
A local authority decided to close several schools and replace them with a new one. Teachers in the schools that were closing could apply for positions in the new school. If their applications were unsuccessful they would be dismissed for redundancy when their existing schools closed.
Two teachers who failed to secure positions in the new school complained that their dismissals were unfair, at least in part because they were not given a right to appeal against their redundancies. Their claims succeeded before the employment tribunal and the EAT, and the employer appealed to the UK Court of Appeal. The key issue was whether a redundancy dismissal will inevitably be unfair if an employer does not offer a right of appeal.
The Court of Appeal confirmed that there is no general principle that a redundancy dismissal is unfair without a right of appeal. If a redundancy selection is conducted in accordance with a fair procedure, the absence of an appeal is not fatal to an employer’s defence. However, the fact that an employer has not offered an appeal is still relevant when considering the overall fairness of a dismissal. In this case there was more than enough evidence for the tribunal to find that the dismissals were unfair, including the absence of proper consultation about the redundancy procedures the employer adopted. The tribunal was fully entitled to take the absence of a right of appeal into account in reaching its decision.
The outcome is of limited comfort to employers planning a redundancy exercise. Although failing to offer an appeal will not necessarily result in a finding of unfair dismissal, it will still be relevant to fairness.
Here the employer argued that an appeal would have made no difference to the outcome because it had already decided to close the schools where the employees worked. An appeal therefore served no useful purpose. However, as the Court of Appeal decision shows, such arguments will not necessarily succeed, particularly if other core aspects of a fair redundancy process, such as consultation and redeployment, have not been followed.